Dead, dying and dangerous: the tree work exemptions

The TPO exemption dangerous tree rule is narrower than almost everyone believes. The old shorthand of dead, dying or dangerous no longer describes the law in England. Since the Tree Preservation Regulations 2012 the dying limb has gone, and what remains is an exemption for dead trees, an exemption for works urgently necessary to remove an immediate risk of serious harm, and a set of narrow further exceptions.

The burden of proving that an exemption applied falls on the person who did the work. That is the sentence to remember before anyone starts a saw.

What the exemptions actually cover

Three of them do most of the work in practice.

A dead tree may be cut down or uprooted, with five working days' notice given to the local planning authority before the work starts. The tree has to be dead, which is a question of fact, and a tree in poor condition with living tissue is not dead.

Works urgently necessary to remove an immediate risk of serious harm are permitted, and notice is given to the authority as soon as practicable after the works. Both adjectives matter. Urgent means the risk cannot wait for the eight-week consent process. Immediate means now, not next winter. Serious harm means harm to people or property of consequence, not a branch over a shed.

Dead branches may be removed from a living tree without notice or consent. This is the exemption most householders actually need and the one most often overlooked.

Beyond those sit narrower cases: works necessary to abate a nuisance in the legal sense, which is much narrower than everyday annoyance and extends only to the works needed to abate it, works required to implement a full planning permission already granted, works by or on behalf of certain statutory bodies, and works required by other statutory obligations.

The same exemptions apply to trees in conservation areas protected by the six-week notice procedure, which means an urgent case does not need to wait out the six weeks.

Notice before and after

Get the notice right, because it is the part an authority checks first when a complaint arrives.

For a dead tree, notice goes to the council five working days before the works. Put it in writing, identify the tree, describe what you propose, and say why the tree is dead. Keep the acknowledgement.

For urgent works, notice goes to the council as soon as practicable after the works. In practice that means the same week, in writing, with photographs. A telephone call to a tree officer is helpful and is not a notice.

Neither notice is an application. The council does not grant anything, and it may disagree afterwards, which is exactly why the evidence gathered beforehand decides how that conversation goes.

Where the tree can wait, apply for consent instead. An eight-week consent process with photographs and a report is a far better position than an exemption you have to defend.

Evidence to gather before the chainsaw starts

Assume you will have to prove the condition of a tree that no longer exists. Work backwards from that.

• Photographs of the whole tree from several positions, dated, with something in shot for scale.
• Close photographs of the defect: the fracture, the fungal bracket, the cavity, the lifted root plate, the hung limb.
• A written report from an arboriculturist where there is any time at all to obtain one, describing the defect, the likelihood of failure and the target beneath it.
• A note of what the target was: a footpath, a road, a bedroom, a play area.
• The contractor's own assessment in writing, and their invoice describing the work carried out.
• Sections of the stem or the failed limb retained on site until the council has been notified and has responded.

That last point sounds excessive until a council asks to see the decay. Keeping the timber costs nothing for a fortnight.

Where the tree sits on a development site, the same evidence belongs in the Arboricultural Impact Assessment so the record is consistent with what was submitted with the application.

Where the exemption stops short of the whole tree

This is the point on which most disputes turn. The urgent works exemption covers the works necessary to remove the immediate risk, and no more.

A hazard beam over a footpath may justify removing that limb. It rarely justifies felling the tree. A lifted root plate on a leaning tree in a garden with no target beneath may justify nothing at all until an arboriculturist has looked at it.

Where a contractor recommends felling because it costs less than climbing, that is a commercial decision and not a legal justification. Ask for the alternatives in writing: reduce, prop, fence off the target area, monitor. Fencing off the area beneath a tree removes the immediate risk in many cases, which means the urgency has gone and consent is required.

Councils do prosecute where a protected tree has been felled under a claimed exemption that covered a limb.

The same discipline applies to a tree that has already partly failed. A stem that has split does not automatically justify removing what is left, and a tree officer visiting the following week will want to see why the remaining structure could not be retained, reduced or monitored. Take the photographs before the clearing up starts.

Replacement planting after exempt works

Removing a protected tree under the dead or urgent works exemption triggers a duty to plant a replacement tree of an appropriate size and species, at the same place, as soon as reasonably practicable. The duty sits in section 206 of the Town and Country Planning Act 1990.

Two things follow. The replacement, once planted, is protected by the original order as if it were the original tree. And the authority can dispense with the duty on application, which is the route where the position is unsuitable for a replacement.

Do not wait to be asked. A letter proposing a replacement species and position, sent with the notice, changes the tone of the whole exchange. Where the works are part of a wider scheme, set the replacements out in a Landscape Strategy so the council can see the net position.

Getting it wrong

Contravening a Tree Preservation Order is an offence. Destroying a protected tree, or damaging it in a way likely to destroy it, is the more serious form and carries the heavier penalty, and other contraventions are prosecuted at a lower level.

The practical exposure is broader than a fine. A council can require replacement planting by notice. An unauthorised felling appears in the planning history and is raised by objectors on any later application for the site. Contractors as well as owners are prosecuted, since the offence catches whoever carries out or causes the work.

The way to stay out of all of this is unexciting. If the tree can wait, apply. If it cannot, photograph everything, remove only what the risk requires, notify in writing immediately, and offer a replacement.

Browse the 66 report types to see which tree and landscape documents a site is likely to need before works are planned.

This is general guidance and not legal advice. Check the position with your local planning authority or a qualified arboriculturist before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.